Mirror of Justice

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Wednesday, October 29, 2014

Tinker v. Des Moines and Meyer v. Nebraska

I recently taught Tinker v. Des Moines Independent School District, the famous 1969 student speech case in which the Supreme Court held that the First Amendment protects the right of high school and junior high students to wear black armbands at school to protest the Vietnam War. There’s an odd reliance on precedent in a crucial passage of Tinker, though. Justice Fortas writes:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The authority for this sweeping characterization of half a century of student free speech rights? In the next sentence, Justice Fortas cites Meyer v. Nebraska (and its companion case, Bartels v. Iowa), the 1923 case striking down a state statute prohibiting foreign language instruction (a legacy of anti-German prejudice amid World War I) on the grounds that the Fourteenth Amendment protects the liberty of parents and teachers. (In dissent, Justice Black—ordinarily a free speech absolutist, but not for students—rejects Meyer as a vestige of Lochnerism.) The more obvious (but more recent) cite for student free speech, West Virginia v. Barnette (1943), is part of a string citation later in the paragraph and is discussed more fully in the next paragraph.

I suppose this is as an effort by the Court in Tinker to claim a longer historical precedent for recognizing student free speech, but it’s also an interesting re-reading of Meyer itself, albeit one that engages in rank anachronism and revisionism. Meyer was decided roughly a couple decades before incorporation of the First Amendment against the states, so the Court in Tinker (post-incorporation) is implausibly turning Meyer into a speech case (Justice McReynolds’s opinion in Meyer never refers to the First Amendment or to freedom of speech). And while those discomfited by Fourteenth Amendment substantive due process might like to save Meyer (and Pierce v. Society of Sisters, decided a couple years later) now by turning them into free speech cases, there’s something cavalier about Justice Fortas’s anachronistic treatment of Meyer. And then there’s the fact that the defendant in Meyer was a German language teacher (not the student), and Justice McReynolds refers throughout to the rights of teachers and parents but only once to any “rights” of students (the statute “interferes…with the opportunities of pupils to acquire knowledge”). 

A final note about the political currents underlying these cases. Tinker and Meyer are surely the most famous constitutional cases to come out of Iowa and Nebraska, and they reflect the two neighboring states’ different political climates. Tinker recognizes the rights of anti-war protesting students in Des Moines, Meyer recognizes the rights of traditional German-American communities in rural central Nebraska to be free of conformist state interference. Iowa is slightly more urban (relatively speaking for the Midwest) and Nebraska more rural (Iowa has nine non-suburban cities with over 50,000 people, Nebraska only three—and Grand Island only barely), reflecting the urban-rural difference between the claimants in Tinker and Meyer. Iowa has historically had more Anabaptists (there are large Amish and Mennonite communities around the Amana Colonies, for example) and liberal Protestants, including the father of the Tinker children (a Methodist minister and American Friends Service Committee member). Late ninteteenth- and early-twentieth century Nebraska had an influx of German (like the defendant in Meyer) and Eastern European Lutherans and Catholics, historically more conservative groups. And so in next week’s US Senate elections, while Ben Sasse coasts to election as a conservative Republican in Nebraska, next door in Iowa another conservative Republican, Joni Ernst—while slightly favored to win—is in a much closer race. It’s all there in the rich history of Tinker and Meyer.

October 29, 2014 in Moreland, Michael | Permalink

Tuesday, October 28, 2014

Roger Scruton on the "great spiritual inheritance" of our law and politics

The Liberty Law Talk podcasts hosted by Richard Reinsch are a wonderful resource (if you have an iPhone, you can subscribe via Apple’s podcasts app). A recent conversation with Roger Scruton was especially interesting and included the following--and typically insightful--comment from Scruton (transcribed from the recording beginning at 15:30): 

I think my position is that you can’t detach what we are now from the history of our civilization, and the very fact that we have all these really remarkable ways of dealing with social conflict like the legal process, democratic process, and so on. The fact that we have those things is not to be understood as some kind of a priori invention. These are the byproducts of a civilization which was founded on something else. It was founded on a sacramental vision of what brings people together and the church has always exerted this control over people’s lives to remind them of this. It doesn’t do so anymore, of course, because we in many ways are in a post-Christian society but it...the Catholic Church made penitence into a sacrament and made the whole business of confession, accepting guilt, atoning for your faults, and begging for forgiveness--it made that into the fundamental religious experience, more fundamental than any other, and that worked its way into the legal system and the political system of the European states. You can certainly find it there in the law of tort in English common law and you can find it in everything until recently. I think we should always remember that we are downstream from this great spiritual inheritance.

October 28, 2014 in Moreland, Michael | Permalink

Monday, October 27, 2014

Symposium on McCullen v. Coakley

Villanova hosted a noteworthy symposium recently on one of last term's major free speech cases, McCullen v. Coakley. Video of the event is available here, with remarks from Eleanor McCullen (lead plaintiff), Mark Rienzi (CUA and also Mrs. McCullen's counsel), Greg Magarian (Washington University-St. Louis), Carrie Severino (Judicial Crisis Network), and Kevin Walsh (Richmond). In addition to the significance of hearing directly from the plaintiff in such a case (as John Noonan long ago observed, we are apt to neglect the experience of actual, living persons behind a major case), the symposium was a rich conversation among participants who all (like the justices on the Court) basically agreed on the outcome of the case but for different reasons (and with different assessments of McCullen's long-term importance to such areas as public forum doctrine and content-neutrality analysis).

October 27, 2014 in Moreland, Michael | Permalink

Tuesday, October 21, 2014

Notre Dame Ethics and Culture Conference: Oct 30-Nov 1

The annual fall conference of the Center for Ethics and Culture at Notre Dame is a jewel in the crown of Catholic higher education. This year's conference topic, inspired by Pope Francis, is "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor." Plenary addresses will be given by Nobel Laureate James Heckman (Chicago), Cardinal Gerhard Müller (Prefect of the Congregation for the Doctrine of the Faith), Alasdair MacIntyre (Notre Dame), and John Finnis (Notre Dame and Oxford). A concluding colloquy on whether Catholic social teaching and American capitalism are compatible will include Patrick Deneen, Hadley Arkes, James Mumford, and John Tomasi. A detailed schedule is available here.

October 21, 2014 in Moreland, Michael | Permalink

Thursday, October 9, 2014

Lawler and Reinsch on Freedom and the Human Person

One of the recurring questions here at MOJ and across the Catholic blogosphere is whether and to what extent Catholicism and American liberal democracy can happily co-exist ("the viability of the John Courtney Murray project" in shorthand). This essay at National Affairs by Peter Augustine Lawler and Richard Reinsch is a rich (and very well-written) reflection on that question by way of an engagement with the thought of Orestes Brownson, the still-unduly-neglected nineteenth century American Catholic thinker. As Lawler and Reinsch note at the outset of the piece:

Some of our most familiar political and intellectual categories, adapted to suit 20th-century debates, now cause us to fall into a simpleminded individualism that we cannot really believe. Too many conservatives, for instance, persist in the tired distinction between individual freedom and collectivism. That unrealistic bifurcation helped discredit the communist or fascist reduction of the particular person to nothing but an expendable cog in a machine, plugging away in pursuit of some glorious paradise to come at the end of History. But today that distinction too often ends up placing in the same repulsive category any understanding of the person as a relational part of a larger whole — of a country, family, church, or even nature. It thus causes conservatives to dismiss what students of humanity from Aristotle to today's evolutionary psychologists know to be true: that we social animals are "hardwired" by instinct to find meaning in serving personal causes greater than ourselves, and that reconciling freedom with personal significance is only possible in a relational context that is less about rights than about duties.

Read the whole thing to see how Lawler and Reinsch think Brownson helps us move past such individualism, but here is a bit from a later part of the essay:

The American, constitutional mean between abstract universalism and tribal secessionism, according to Brownson, is a limited political unity of citizens who know they are also more than and less than citizens. All of us equally are shaped by natural, personal imperatives having to do with flourishing as material, political, and spiritual beings. When we forget any of the three, we fall into trouble. The material being is concerned with the personal subsistence of himself and his family. The political being is concerned with the common good shared by citizens in a "territorial democracy" in a particular part of the world. The spiritual being is concerned with discovering his relational duties to his loving personal Creator and sharing that personal news with his fellow creatures through the church.

October 9, 2014 in Moreland, Michael | Permalink

Thursday, October 2, 2014

Symposium at Villanova Law on McCullen v. Coakley

For those in the Philadelphia area or nearby, Villanova Law will be hosting a symposium on Friday, October 17 at 1:30pm in Law School Room 101 on the US Supreme Court’s decision last term in McCullen v. Coakley, unanimously striking down on First Amendment grounds a Massachusetts abortion clinic buffer zone statute. The lead plaintiff in the case, Eleanor McCullen, will participate and will be in attendance along with her husband, Joseph T. McCullen, Jr., a Villanova alumnus and benefactor. Also participating will be the attorney who represented Mrs. McCullen before the Supreme Court. Confirmed participants include:

Gregory P. Magarian

Professor of Law, Washington University School of Law

Professor Gregory Magarian is an expert in free speech, the law of politics, and law and religion. Before joining the law faculty at Washington University, he was on the faculty of Villanova University School of Law from 1999 to 2008. He has written about a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process. As part of an ABA project, he led a team of faculty examining the work of Supreme Court Justice Elena Kagan during the nomination process. Before becoming a law professor, he clerked for US Supreme Court Justice John Paul Stevens, as well as for Judge Louis Oberdorfer of the US District Court for the District of Columbia. Professor Magarian also practiced law for five years with the Washington, DC firm of Jenner & Block. He earned his BA from Yale University and his JD and MPP from the University of Michigan. 

Mark L. Rienzi

Counsel for Eleanor McCullen, Senior Counsel at the Becket Fund for Religious Liberty, and Associate Professor of Law, The Catholic University of America

Professor Mark Rienzi's litigation and research interests focus on the First and Fourteenth Amendments, with an emphasis on free speech and the free exercise of religion. As Senior Counsel at the Becket Fund for Religious Liberty (a non-profit, non-partisan religious liberties law firm dedicated to protecting the free expression of all religious faiths), Professor Rienzi is counsel in several challenges to the HHS Mandate. Prior to joining CUA, Professor Rienzi served as counsel in the Supreme Court and Appellate Practice Group at Wilmer Hale LLP in Washington, DC.  Prior to joining Wilmer Hale, he served as law clerk to the Hon. Stephen F. Williams, senior circuit judge for the US Court of Appeals for the DC Circuit. He earned his JD from Harvard Law School and BA from Princeton University. 

Carrie Severino

Chief Counsel and Policy Director, Judicial Crisis Network

As chief counsel and policy director of the Judicial Crisis Network, Carrie Severino has testified before Congress on assorted constitutional issues and briefed Senators on judicial nominations. Mrs. Severino has been extensively quoted in the media and regularly appeared on television, including MSNBC, FOX, CNN, C-SPAN and ABC’s This Week. She has written and spoken on a wide range of judicial issues, particularly the constitutional limits on government, the federal nomination process, and state judicial selection. Mrs. Severino regularly files briefs in high-profile Supreme Court cases. In the 2013 term those cases included Hobby Lobby v. Burwell, McCullen v. Coakley, and Schuette v. BAMN. Until March 2010, Mrs. Severino was an Olin/Searle Fellow and a Dean's Visiting Scholar at Georgetown University Law Center. She was previously a law clerk to US Supreme Court Justice Clarence Thomas and to Judge David B. Sentelle of the US Court of Appeals for the DC Circuit. She received a BS from Duke University, an MA in Linguistics from Michigan State University, and a JD from Harvard Law School. 

Kevin C. Walsh

Associate Professor of Law, University of Richmond School of Law

Professor Kevin Walsh teaches and writes in the areas of federal jurisdiction and constitutional law. His scholarship focuses on doctrines that define the scope of federal judicial power, and has appeared in the Stanford Law Review, New York University Law Review, and Hastings Constitutional Law Quarterly. Prior to joining the Richmond Law faculty in 2009, Professor Walsh was a Visiting Assistant Professor at Villanova University School of Law. He earned his AB from Dartmouth College, his MA in Theology from the University of Notre Dame, and his JD from Harvard Law School. He clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit.

October 2, 2014 in Moreland, Michael | Permalink

Wednesday, October 1, 2014

Thérèse of Lisieux

Today is the Memorial of Saint Thérèse of Lisieux (1873-1897), a figure from the Catholic tradition all too easy to sentimentalize about and thereby fail to appreciate her remarkable achievement. At the end of the nineteenth century amid a secularizing culture in Europe, a French girl from a small town in Normandy led a short, tragic, and holy life in a cloistered convent, leaving behind a spiritual classic that Charles Taylor notes in A Secular Age illustrates the possibility of religious faith amid moden disbelief (p. 765 and p. 850, n. 64). A century later, she was declared a doctor of the Church (one of only four women), and, as Dorothy Day wrote in 1949, "on the frail battleground of her flesh was fought the wars of today." For more on Thérèse and what she means for our world and for all of us in our various vocations, see this from the Houston Catholic Worker (on Dorothy Day's devotion to Thérèse), this from Rusty Reno, and this from Philip Zaleski.

October 1, 2014 in Moreland, Michael | Permalink

Tuesday, September 23, 2014

Waldron on Sunstein and the Specter of "Government House Utilitarianism"

At the Libertas Project workshop on economic freedom this past summer, one of our sessions took up the issues posed by Cass Sunstein and Richard Thaler's Nudge, which is generating a cottage industry of commentary around issues of freedom, autonomy, and government paternalism. This interesting review at the NY Review of Books by Jeremy Waldron of two (!) new books by Sunstein nicely frames the debate.

Waldron points out in the review the danger in Sunstein's claim that "we should design policies that help the least sophisticated people in society while imposing the smallest possible costs on the most sophisticated" of what Bernard Williams memorably called "Government House Utilitarianism":

There are deeper questions, too, than these issues of trust and competence. As befits someone who was “regulation czar” in the Obama White House, Sunstein’s point of view is a rather lofty one and at times it has an uncomfortable affinity with what Bernard Williams once called “Government House utilitarianism." Government House utilitarianism was a moral philosophy that envisaged an elite who knew the moral truth and could put out simple rules for the natives (or ordinary people) to use, even though in the commissioner’s bungalow it was known that the use of these rules would not always be justified. We (the governors) know that lying, for example, is sometimes justified, but we don’t want to let on to the natives, who may not have the wit to figure out when this is so; we don’t trust them to make the calculations that we make about when the ordinary rules should not be followed. Williams saw the element of insult in this sort of approach to morality, and I think it is discernable in Sunstein’s nudging as well.

Here's an interesting question for Catholic legal theory: Does the Catholic tradition's robust commitment to the common good sit comfortably with Sunsteinian nudging of citizens by the state (one might even think that, pace Sunstein, nudging should include not merely health, safety, and economic choices but also moral virtue)? And how much does the answer to that question turn on accepting something like Sunstein's welfare maximization account, which is hardly what the tradition means by the common good? But if the political common good is merely instrumental to other human goods, one has reservations about the competence of the state in such matters, or one is concerned about the autonomy of our choices (a libertarian view one doesn't readily encounter in Catholic social thought), then perhaps the critics of nudging are right to worry about it. (See Waldron's comments about how Sunstein's equation of autonomy with welfare is "remarkably tone-deaf to concerns about autonomy").

September 23, 2014 in Moreland, Michael | Permalink

Monday, September 22, 2014

Midwestern Catholics Take Charge

With the appointment of Bishop Blase Cupich of Spokane to be Archbishop of Chicago, products of Omaha, Nebraska are now leaders of two of the most important institutions of American Catholicism: the Archdiocese of Chicago and the University of Notre Dame (Father John Jenkins, CSC). Also, former Bishops of Rapid City, South Dakota will now be Archbishops of two of the six largest dioceses in the United States (in addition to Archbishop-elect Cupich in Chicago, my own Archbishop, Charles Chaput, OFM Cap. of Philadelphia, was formerly Bishop of Rapid City).

The prominence of Omaha and Rapid City may be a geographic coincidence, but there might also be a larger point here about the rise of Midwestern Catholicism in the American Church.

Consider that almost all of the ordinaries of the redoubts of the East Coast Catholic Church are Midwesterners: Boston (Cardinal O’Malley is from Lakewood, Ohio and Pittsburgh), New York (Cardinal Dolan is from St. Louis), Philadelphia (Archbishop Chaput is from Concordia, Kansas), and Washington (Cardinal Wuerl is from Pittsburgh). (Pittsburgh is a close call, but I say the Midwest begins when you pass the Alleghany Mountain Tunnel on the Pennsylvania Turnpike—and surely Pittsburgh historically has been more like Cleveland or Detroit than it’s been like New York or Philadelphia.) Only Archbishop Lori of Baltimore—a priest of the Archdiocese of Washington originally from Kentucky—is from an East Coast diocese. None of the American cardinals serving now as archbishop of a diocese is native to the East Coast: besides O’Malley, Dolan, and Wuerl, Cardinal DiNardo of Galveston-Houston is from Pittsburgh (via Bishop of Sioux City, Iowa). And Catholic university presidents at Notre Dame (Nebraska, as mentioned), Boston College (Father William Leahy, SJ is from Iowa), and Villanova (Father Peter Donohue, OSA is from Michigan) are from the Midwest.

The larger story, if there is one, may be that those formed by Midwestern Catholicism—less clerical, less dependent on the large institutions that have marked East Coast Catholicism—are suited to address the challenges of the 21st century American Church. Regardless, congratulations to Bishop Cupich and best wishes in retirement to Cardinal Francis George, OMI (originally from...Chicago).

September 22, 2014 in Moreland, Michael | Permalink

Wednesday, September 17, 2014

Caledonian Peronism and Majoritarianism: Two Thoughts about Scottish Independence

Those of us from an Irish Catholic background are inevitably reserved, to say the least, about British Unionism. But as Rick pointed out last week, the prospect of Scotland voting tomorrow to secede from the United Kingdom seems extraordinarily foolish and may, as argued here by Walter Russell Mead, usher in an era of wider political instability that we will all soon regret (and some of the damage may already be done). Two offhand thoughts on this eve of the referendum:

First, rather than a modern domesticated version of Robert the Bruce, the Scottish nationalist movement today seems more a Caledonian variant of Peronism—socially progressive, yes, but also a brew of authoritarianism, economic populism, and class resentment (see Tom Gallagher's piece earlier this summer). Many voting for Scottish independence tomorrow have hopes of creating a Scandinavian welfare state utopia shorn of retrograde English capitalism, but they are more likely to get economic stagnation, debt crises, currency instability, and political turmoil. And as John Haldane wrote here, none of this will be good for the Catholic Church or for religious liberty.

Second and as a matter of political and legal theory, there is something odd about the bare majoritarianism at work in tomorrow’s vote. 50% plus one of Scottish citizens age 16 and older (well, those who live in Scotland—Scots living in other parts of the UK can’t vote in the referendum) can decide to form an independent country and abrogate the 1707 Act of Union with England—and that result binds 50% minus one of Scots. Jeremy Waldron elegantly argues in The Dignity of Legislation (Cambridge UP, 1999) against the arbitrariness of majoritarianism and the legitimacy of Locke's "physics of consent" by majority rule. Fair enough as to normal politics—popular voting for candidates or legislative majorities. Ultimate questions of sovereignty, though, seem to me to require an account of authority and a background political culture that majoritarianism alone can’t provide--a problem rarely (and fortunately so) posed in the modern state. As Tyler Cowen wrote this morning, crudely posing certain questions and asking the people to resolve them (here by bare majority rule) threatens any political order, and independence "might just be a question which should not be asked in such a blatant form." And as he wrote presciently some months ago, "If a significant segment of the British partnership wishes to leave, and for no really good practical reason, it is a sign that something is deeply wrong with contemporary politics and with our standards for loyalties.”

September 17, 2014 in Moreland, Michael | Permalink